Irish Shot at Dawn 1914-18

report presented to the british government 28 october 2004:

report placed before seanad Éireann on the 28 march 2006 by irish foreign minister mr dermot ahern t.d:

Report into the Courts-Martial and Execution of Twenty Six Irish Soldiers

by

The British Army during World War 1

THE DEPARTMENT OF FOREIGN AFFAIRS, DUBLIN, OCTOBER 2004

executive summary

1.  The Shot at Dawn (Ireland) Campaign, coordinated by Mr Peter Mulvany, lobbied the Irish Government to support their call to the British Government to pardon retrospectively 306 British soldiers executed during World War 1 for military offences. Twenty-six of these soldiers are believed to be from Ireland, and the offences under which they were sentenced to death and subsequently executed were repealed in 1928 and 1930.

2.   A thorough review of the issue identified a number of supportive points for the objectives of the Shot at Dawn Campaign. The Minister for Foreign Affairs, Mr Brian Cowen, T.D., announced Government support for the Campaign on 14 November 2003. A meeting at official level with the British Ministry of Defence subsequently took place in London on 6 February 2004 to discuss the matter with a view to finding a satisfactory resolution.

3.  It was agreed at this meeting that the British side would forward the courts-martial files of the twenty five Irish soldiers in their possession (the other courts-martial file is in the possession of the Canadian authorities), and the Irish side would review these documents and submit an official paper on the matter. The review of these files make for difficult reading, and corroborate the argument in favour of retrospective pardons for the men in question on a number of fronts:

-           The offences under which each soldier was executed, such as desertion, striking an officer and disobedience, were the subject of much parliamentary discourse as early as 1915, and intensified until 1928 and 1930 when the Government repealed the death penalty for these particular offences. This indicates the level of parliamentary and public uneasiness surrounding these executions at the time of the war, and dispels the notion that today’s standards are being used to judge the past. The closure of the case files of those shot at dawn for 75 years by the British military also indicates an awareness of the sensitivity which was afforded the matter in the aftermath of the war.

-           The courts-martial files indicate a trend among the accused of a lack of even a rudimentary understanding of their rights under military law. The absence of a ‘prisoner’s friend’ in the majority of cases, to safeguard those rights, further undermines the assertion that those facing courts-martial were afforded their legally entitled rights.

-           A comparison of recruitment figures and subsequent death sentences suggests a disparity in the treatment of Irish soldiers in comparison with those from other countries in the British army. For example, the number of men recruited in Ireland was similar to that of New Zealand, however there were ten times the level of condemnations in the Irish Regiments[1] despite the New Zealand regiments being notoriously harsh with discipline.

-           The treatment of the lower ranks at courts-martial, in comparison to officers and higher ranks, indicates a degree of class bias that is incompatible with an impartial system of justice. The treatments meted out to officers and upper echelons tended to be at the lower end of the disciplinary scale, whereas lower ranks were often afforded little, if any, leniency.

-           The revelation that King George V retrospectively pardoned those in the higher ranks both during and after the war following petitions and appeals signed by military personnel with significant influence, further demonstrates this partiality.

-           The case files include some shocking omissions by those presiding at courts-martial with regard to medical ailments and extenuating circumstances. In a number of cases there is clear evidence of ignoring medical conditions and personal circumstances that may have accounted for the actions of the accused, and could reasonably have been interpreted as mitigating factors.

-          The confirmation process presents clear evidence that some soldiers were executed for example, to deter others from committing a similar crime, and not because they deserved their fate. Frequent character references as to the fighting qualities of the accused, although not always recorded, were sufficiently common to assume they hindered the possibility of receiving leniency from those in a position to confirm, or commute, the sentence.

4.  It is our belief that the above points, singly or cumulatively, represent sufficient grounds to merit the initiation of a process by the British Government through which retrospective pardons can be granted to the soldiers concerned. The support for retrospective pardons for these men both in Ireland and the UK is demonstrated by the Shot at Dawn Campaign’s long-term attraction of support since the early 1990’s, despite only recently receiving the media attention the subject deserves. The cross community Bill in the House of Commons in 1999, sponsored by Ian Paisley and John Hume, demonstrates the depth of feeling of both sides of the community in Ireland, north and south, with regard to the treatment of those executed. 

5.  The passage of the Pardons for Soldiers of the Great War Act 2000 in New Zealand represented a significant step forward for those supporting the Campaign, and may provide a basis with which to revisit this sensitive but important matter from a British perspective. Furthermore, the recent release of information regarding King George V providing pardons to officers both during and after the war can surely be utilised as a legal precedent with which to move forward and finally recognise the ultimate sacrifice made by all those who fought and died. The 90^th anniversary of the outbreak of the war in 2004 will allow people around the world the opportunity to reflect on the devastation and loss caused by the Great War. It is a fitting time to finally resolve the controversy that surrounds those shot at dawn and, by finally removing the stigma of condemnation, provide a long sought for peace of mind to their families. 

Introduction

The Shot at Dawn Campaign (UK)

6.  The Shot at Dawn Pardons Campaign (UK), based in Britain, has been working for pardons for 306 British and Commonwealth soldiers who it is claimed were unjustifiably executed following Field General Courts-Martial (FGCM) during World War I. In 1981, while the documents relating to the courts-martial of these men were still closed to the public by the British Government, Mr Justice Babington was granted privileged access for the purposes of writing a book on the subject. The resulting publication in 1983 of For the Sake of Example caused much publicity and has since been complimented by numerous military historian publications also supporting the view that many of the courts-martial convictions at the time were unsafe.

7.  Andrew Mackinley, Labour MP for Thurrock, began a campaign in the 1990s for the granting of a blanket pardon for the 306 men allegedly unjustly executed by the British authorities. Consequently, in 1997, the newly elected Labour Government began a promised review of cases, examining files of those court-martialled, with a view to that pardon being granted. A year later, on 24 July 1998, the Armed Forces Minister, Dr John Reid, reported to the House of Commons that, “the passage of time means that the grounds for a blanket legal pardon on the basis of unsafe conviction just do not exist.”

8.  The Shot at Dawn Campaign, initiated in 1990 in the UK by Mr John Hipkin, and coordinated in Ireland by Mr Peter Mulvany, do not accept the British Military response and continue to fight for what they perceive as a military injustice toward those executed.

Contact with The Shot at Dawn Campaign (Ireland)

9.   The Shot at Dawn Campaign (Ireland) has been actively campaigning for pardons for 26 soldiers born in Ireland and executed while serving in the British Army during WWI. The campaign is being coordinated by Mr Peter Mulvany who, through a strong sense of dedication and determination, has successfully raised public awareness of this issue. A number of articles in the major Irish and UK papers during 2002, 2003 and 2004 were favourable to his efforts, and he has received the support of numerous T.D.’s and MP’s. In addition, he has to date successfully obtained the endorsement of SIPTU, Cardinal O’Connell, Church of Ireland, Dublin City Council, Limerick City Council, Cork City Council, Dublin Trades Council, Banbridge District Council, Newry and Mourne District Council and the Liberal Democrats, to name but a few.   

10. The campaign in Ireland has gained in momentum recently in part as a corollary to the acceptance that service in the British Army prior to Independence is a legitimate part of our national heritage. This acceptance emerged in the late 1980s with official representation at memorial services on Armistice Day. It has been further boosted by the peace process (e.g. the cross community cooperation surrounding Messine). Sinn Féin has moved to embrace this acknowledgement with its then Lord Mayor of Belfast, Alex Maskey, laying a wreath at the Belfast Cenotaph in 2002. The SDLP Belfast Lord Mayor, Martin Morgan, has gone one further step by launching the Poppy Day Campaign in 2003. The next logical step to this acceptance of British Army service is concern for the treatment of those men. 

11. Mr Mulvany had been asking the Government to make a representation to the British Government seeking pardons for the 26 Irish men who allegedly were unjustifiably executed in World War I. The Shot at Dawn Campaign (Ireland) are focussed only on those 26 Irish men executed for military offences that were repealed in the British Army and Air Force Acts of 1928 and 1930 (cowardice, desertion, falling asleep at post etc) and not those responsible for civilian ‘high crimes’ such as rape, treason or murder.

12. A cross community private members Bill, which would have allowed the granting of such posthumous pardons, was introduced into the British Parliament in 1999 but was allowed to run out of time. The Bill demonstrated that support on this issue comes from nationalists and unionists alike, and was sponsored at the time by John Hume, Ian Paisley and David Steele.

13. Following a thorough review of the issue in 2003 it was agreed by the Irish Government that there is sufficient evidence available to question the validity of the courts-martial verdicts and subsequent sentences. The Minister for Foreign Affairs, Mr Brian Cowen, T.D., announced support for the Shot at Dawn Campaign objectives on 14 November 2003, and called for the 26 executed Irish men to be retrospectively pardoned and granted a dignity in death that was not afforded them in life. A copy of the Minister’s Press Release is attached as Annex 1. A meeting at official level with the British Ministry of Defence subsequently took place in London on 6 February 2004, at which each side set out their respective positions. At that meeting it was agreed that the Irish Government would officially submit its position in writing to the British side. This report is therefore fulfilment of that obligation.

The Military System of Justice

14. More than 3,000 British soldiers were sentenced to death during the Great War, with almost 11 per cent of the sentences actually carried out. The sentences of death were handed down by a Field General Courts-Martial (FGCM), a fast track system designed for maximum expediency in wartime environments. It consisted of a military trial convened in the field with a minimum of three officers, one at rank of Captain or above acting as president. A number of sentences were available depending on the seriousness of the offence, but a sentence of death could not be passed without the unanimous agreement of all those on the panel. Each defendant was entitled to a ‘prisoner’s friend’, normally an officer who would represent the accused, who was granted all the rights of a professional counsel.

15. According to the Rules of Procedure in place at the time, every accused must be afforded a proper opportunity of preparing his defence, and must have the freest communication with his witnesses which was consistent with good order and military discipline.

16. After the prosecution case had been completed the prisoner was entitled either to give evidence on oath or to make an un-sworn statement, if he chose to do so. He could also call witnesses for the defence.

17. The court was then closed whilst the members considered their findings. The court was then reopened when a decision had been reached and if the verdict was not guilty, it was disclosed immediately. If the finding of the court was guilty, the President stated that the court had no findings to announce, and they proceeded to hear evidence with regard to the prisoner’s character.

18. Finally, the prisoner could make a plea in mitigation of the sentence, and the court once again closed to consider the sentence. Although the accused was well aware of the fact if he had been found guilty, he remained in ignorance of the sentence which had been passed on him until promulgation took place days or weeks later.

19. Once sentence had been passed, a soldier’s commanding officers had the option of recommending leniency through the confirmation of sentence process. Although each superior officer of the accused had the opportunity to recommend whether the finding of the court should be carried out, the ultimate decision lay with the supreme commander (Field Marshal Haig from 1915 onwards), who confirmed the sentences once the Judge Advocate General had signed off on the legalities of the case. 

20. The fighting character of the accused, the prevailing discipline in his battalion, and, in cases of desertion, the opinion of the commanding officer on whether he thought the offence was intentionally committed to avoid a particular service, were forwarded up the chain of command along with the courts-martial file.

21. If the Commander in Chief confirmed a death sentence the announcement normally took place at a parade of the condemned man’s unit on the evening prior to his execution. At the parade, attended by the prisoner under escort, his adjutant read out extracts from the evidence at his trial, the findings and sentence of the court and the order of confirmation by the Commander in Chief. The sentence was then duly carried out the following morning, sometimes by men in the prisoner’s battalion. An officer was always on hand with a revolver to impart the killing shot if the firing squad missed their target, which was a common occurrence.

Grounds for granting retrospective pardons

Current and Contemporaneous Grounds

22. The British Ministry of Defence, at the forefront of opposition to the Shot at Dawn Campaign, has stoutly defended the integrity of the military system of justice and the sentences which emerged from it.  Furthermore, it argues that today’s standards cannot be used to judge the past. This is fundamentally flawed because it is erroneously predicated on the assumption that public opinion about the execution of British soldiers during the First World War endorsed the decision to kill the men, or was at odds with today's criticism. This is simply incorrect - a fact that was confidentially acknowledged by the Army itself in 1919 as evidenced in the following extract from Public Record Office File: WO32/5479 Suspension of the Death Penalty: 1918-19: “Even during the continuance of hostilities there was very strong feeling both in the country and in the House of Commons against the infliction of the death penalty for military offences. Now that hostilities have ceased it can confidently be stated that the effect on this country of a death penalty might lead to an agitation which might be difficult to control and in all probability would jeopardise the prospects of maintaining the death penalty for military offences in time of peace when the Annual Army (Act) comes before the Houses of Parliament”. 2 March 1919 D.P.S. [i.e. Director of Personal Services, Brigadier General Sir Wyndham Childs, Department of the Adjutant-General].

23. It is quite clear that contemporaneous concerns about the executions generated a tenacious campaign that began in the wake of the war. Throughout the 1920’s, Ernest Thurtle, a Labour MP and war veteran, led the parliamentary campaign to abolish capital punishment for military crimes because of his experiences as a serving soldier[2]. The following quote give some sense of his passion for this cause and of the prevailing support at the time: “The movement for the abolition of the Death Penalty for military offences is growing rapidly, as the recent debate and division in the House of Commons demonstrated. There is no doubt that these shootings in cold blood of men for desertion and cowardice (so-called) are repugnant to the great majority of the people of the country. Offences of this kind are almost entirely manifestations of nerve failure in one form or another and to the average man and woman, it is an outrage of justice that for such failure men should be shot by their own comrades, in accordance with the provisions of existing Military Law”.

24. That he enjoyed contemporary support is evident by the fact that in 1928 he scored a major victory when the Government abolished the death penalty for eight offences, including striking superior officers, disobedience and sleeping on posts. However, the two offences which had caused most of the executions during World War One retained the death penalty: desertion and cowardice.

25. In 1929, Thurtle’s bill to abolish military capital punishment was initially restricted to offences involving cowardice and quitting of posts, but Thurtle lobbied his colleagues to include desertion. When the bill reached the House of Lords, they rejected the proposals after speeches from several retired military figures such as Lord Allenby. The House of Commons overrode the Lord’s rejection, and Royal Assent was granted on 29 April 1930. Therefore, following 1930, British military personnel could not be sentenced to death for offences such as desertion and cowardice. 

26. It might well be argued that the very fact of the passage of these two Army and Air Force Acts, representing the withdrawal of powers hitherto enjoyed by the British Army, were effectively votes of no confidence in the system of military justice and, moreover, were in themselves ex post facto exonerations of those executed.

27. Finally, even if it is accepted that current standards are being applied, the argument has been rejected by the British criminal justice system.  Mr Justice Babington, author of ‘For the Sake of Example’ wrote in 2000  “the decision in Regina Vs Johnson would seem to indicate the spirit in which the Government should consider whether to pardon the soldiers convicted of cowardice or desertion and executed during the First World War. The Court of Appeal in this instance stated ‘In considering the safety of a conviction, the Court of Appeal had to apply the standards considered appropriate today rather than those viewed as appropriate at the time of the original trial’. I would urge the Government to have these cases looked at again in light of the Court of Appeals decision”.

Disparity in the treatment of Irish Soldiers

28. Field General Courts-Martial were used almost universally for trials on the Western Front during the four years of the Great War, and they imposed a total of over 3,000 death sentences, around 11 per cent of which were actually confirmed and carried out. There were twenty-six executions of soldiers serving in Irish regiments for desertion (23), striking an officer (1), quitting a post (1) and disobedience (1). This might not seem many, but given the size of the Irish regiments it is an extraordinarily high number.

29. Death sentences can be grouped into countries by reference to the regiment in which each soldier was serving, thus enabling a comparison with the numbers recruited. What this information reveals is that there is a close relationship between the number of men recruited in each country, and the number of death sentences passed on regiments from those countries. Most death sentences (65%) were passed on men serving in English regiments, which is remarkably similar to the proportion of men recruited in England (67%). Similarities exist for other countries:

-           Scottish soldiers were the subject of 11% of death sentences

            -           Welsh soldiers were the subject of 3% of death sentences

            -           Australian soldiers were the subject of 4% of death sentences

            -           Canadian soldiers were the subject of 8% of death sentences

-           New Zealanders and South Africans were the subject of approximately 1% each

30. In all these cases the similarities between the proportion of death sentences and recruiting ratios are striking. However, there is one remarkable exception to this: Ireland. The proportion of death sentences passed on Irish soldiers is far in excess of the proportion recruited in Ireland. The recruitment in Ireland had been problematic, and the numbers eventually recruited were in the range of 130,000 to 140,000. This figure is comparable to the number of men recruited in New Zealand, yet the number of death sentences passed on men serving with Irish regiments was almost ten times that of soldiers in New Zealand units (239 to 23), even though discipline in New Zealand units was renowned for being especially harsh.

31. Wales provided roughly twice as many men to the army as Ireland, however the number of death sentences passed on Welsh soldiers is almost one third of the Irish total[3]. This is clear from the chart below which depicts the % of total army from each country, and the respective % of death sentences[4]:

England figures are 67% recruitment, 65% death sentences

see also Irish WW1 Execution Statistics

32. Differing battle experience is an unsatisfactory explanation for these statistics. An analysis of Irish units serving in regular divisions together with other British units suggests that within those divisions death sentences were more common in the Irish units than the English, Scottish or Welsh units. There were five Regular Army divisions containing Irish and non-Irish battalions: The Guards Division, 4 Division, 7 Division, 8 Division and 29 Division. Irish units in these divisions consistently came off worse than others. The overall average for English, Scottish or Welsh units in these divisions is four death sentences per battalion. However, the overall average for the Irish units in these divisions is seven per battalion.

33. In most British formations, one in every 2-3,000 troops was sentenced to death. Yet one in fewer than every 600 Irishmen to enlist in the British army was sentenced to death by courts-martial. Interestingly, the number of condemnations in the ‘loyalist’ 36th (Ulster) Division is comparable to the other Irish divisions. This indicates that there was no religious basis for the disparity in Irish condemnations.

34. There is nothing to indicate a deliberate policy against the Irish ranks in the transcripts of the trials themselves. However, the pervading British attitude towards the Irish at the time is well documented as one of mistrust and suspicion. Literature of the time hints at the anti-Irish feeling of many in British society, especially in the upper class. Efforts to improve recruitment figures in Ireland by Redmond in the south, and Craig in the North, for differing reasons, did little to dispel this attitude.

35. The stock distinction between English and Irish at the time of WW1 could not have been expressed more succinctly than in the conclusion of the Southborough Committee in 1922, set up to investigate the condition known as shellshock. The Committee heard evidence that questioned the soldiering abilities of certain races, including the Irish, and concluded that, although shellshock did not recognise an individual’s background, the Irish, among others, were more prone to it. Racial characteristics were cited as a predisposing cause together with ‘education and social conditions and environments’ in that order[5].

The Courts-Martial of Officers in comparison to Lower Ranks

36. Many of those executed were young working class soldiers. They were not tried by their peers but by men of a different social class imbued with the prejudices of the military subculture of which they were a part. As in peacetime magistrate’s courts, so in wartime courts-martial did the Edwardian middle and upper classes pass judgement on the behaviour of the lower orders. Even in the cases of the more enlightened officers there was pressure to be stringent. To do otherwise was to solicit censure for lacking appropriate disciplinary zeal, and occasionally provoked a dressing down from a superior officer. A number of junior officers made mention of this pressure.

37. That the entire military judicial system was staffed and controlled by officers from the upper reaches of society was typical of the European armies at the time.  A public school education or attendance at a university was virtually mandatory, even for “temporary gentlemen” who were granted wartime commissions. The extent to which the influence of British public schools was exerted is evident. The proliferation of officers from public schools may be exemplified by one of the most famous, Eton College:

38. Nor is it surprising that the perspective of this narrow social elite dominated attitudes within the army. Indeed it is the common public perception, literary response and academic consensus that the casual waste of human lives in the Great War was the product of this elite’s stubborn adherence to anachronistic tactics which had failed to adjust to the new technologies of war.  

39. However, the extent to which this class perspective distorted the system of military justice has not featured to any great extent, largely because of the reluctance to release the files on field courts-martial and the associated punishments. The extent of the distortion, as illustrated by the table below, is startling and speaks for itself.

Punishment:

 (Only one Indian soldier is recorded as having been sentenced to death - all others were tried under the provisions of the Indian Army Act - records of which were kept separately and have not survived.)

40. It is clear from this table that the most common punishments for officers were at the lower end of the scale involving dismissal or reprimand, while that for enlisted men was death, imprisonment or field punishment.  Although officers were not subjected to the same rigid military law as the lower ranks, not being subjected to field punishments for example, it is evident that they were afforded a type of treatment and avenue of appeal that was unavailable to the lower ranks.

41. For example, at around the same time as the courts-martial and execution of Rifleman James Crozier for desertion in February 1916, an officer was courts-martialled for the same offence. Second Lieutenant A.J. Annadale was, however, more fortunate than Rifleman Crozier. Annadale was also convicted, but managed to get off when ‘influential friends’ queried the legality of his conviction. In the words of Lt Colonel Percy Crozier in his book, The men I killed, “the least said about this (the Annadale case) the better, except to remark that had justice been done according to our code regrets would have been fewer than in the case of Crockett (Rifleman Crozier)”

42. The recent release of information uncovered by historians Dr Gerard Oram and Julian Putkowski from their soon to be published book further substantiates the argument that officers received differential treatment at courts-martial than the lower ranks. Data from official military files detail how the then King, George V, pardoned five officers outright as well as numerous other actions. The details of the eight overseas trials that highlight these retrospective actions by the King are described in the following table:

¹S41....Scandalous Conduct/ Murder/ Treason/ Rape

²S25....Uttering False statements/ Falsifying Documents/ Fraud

³S40....Conduct Prejudicial to good order and military discipline

^4....Cashiered: Discharged in disgrace

^5....Forfeiture of Service: Docking time in any given rank thereby reducing pay and pension

Manual of Military Law 1914-18

43. This information does not cover the full extent of the material uncovered by Oram and Putkowski, but provides an indication of the influence of the upper members of the military hierarchy in petitioning King George V to pardon those officers dismissed or cashiered in disgrace. Twenty six Irish men were not afforded the opportunity of an appeal to the King, had no military commanders pleading for pardons on their behalf, and received no retrospective leniency for their actions, no matter how deserving they may or may not have been. A military system of law that provides one form of justice to the lower ranked troops on the front line, and another to the officers and upper echelons, cannot be deemed to be just and must be seen for what it evidently was: biased[6].

OTHER THEMES FROM COURTS-MARTIAL CASE FILES REVIEWS

Consideration of medical conditions and extenuating circumstances

44. In the face of the horrible reality of the trenches of the Western Front, the weak and the strong cracked in much the same manner. Erratic, uncontrollable behaviour and irrational actions were regular occurrences. There was no shortage of negative stimuli to spark off an attack of what came to be known as ‘shellshock’ – the trauma induced by the impact and consequences of a heavy barrage - later known as battle fatigue and nowadays known as post traumatic stress disorder. The response of most soldiers to the overwhelming awfulness of the trenches was to grow an extra layer of skin and get on with whatever was required of them. Some were unable to do so. Some took their own lives; others succumbed to temporary or permanent insanity.

45. Many in the military establishment were suspicious of what appeared to be simple, rank cowardice to them. There was an impression that many of those exhibiting signs of trauma were simply malingering. But then many senior officers never got close enough to exploding shells to suffer the consequences. The rejection of a shell-shock defence in three of the eighteen executions for cowardice reflected the widely held belief in the British army that it was pernicious to take such claims too seriously to prevent what they believed may have become a potential epidemic[7]. This was unwittingly expressed by Douglas Haig when he appended the remark ‘how can we ever win if this plea is allowed?’ in response to a recommendation for mercy in the case of a nerve-shaken soldier during the Battle of the Somme[8]. 

46. As the war went on the results of shellshock could not continue to be ignored as more experienced regular soldiers showed signs of affliction, and not just the young inexperienced conscripts and volunteers. The phenomenon became so widespread that by the end of the war, as many as 80,000 officers and men had been unable to continue in the trenches, and many had been invalided out of the army altogether for nervous disorders. The real figures however must be higher, as medical officers were told not to diagnose lower ranks as shell-shocked[9].

47. Jack Campbell, a Dubliner with the 1^st Battalion, the Royal Highlanders, spent four years in the firing line and saw many men crumble: “People have said that a lot of the fellows that were suffering from shellshock were only kidding on that they were suffering to get away from the trenches. That’s all wrong, because I had to help many a poor fellow that had shell shock. They were insane, let’s face it. As a matter of fact I don’t think anyone who came through the ’14-18 war was really mentally steady”[10].

48. Special centres were set up in 1917 to deal with victims, which were known as ‘Not Yet Diagnosed (Nervous)’ centres (NYDN). Prior to the establishment of these centres, mental illness was not confronted with any semblance of treatment, and the absence of an obvious physical injury more often than not resulted in the soldier being declared fit for duty and returned to his unit. Treatments for shellshock varied following its acceptance as a legitimate illness, but tended to focus primarily on rest and recuperation as it was thought that exhaustion was one of the main, contributory factors in the breakdown seen in the men.

49. Lord Moran, author of ‘The Anatomy of Courage’ wrote “When a soldiers resistance to fear has been lowered by sickness or by a wound the balance has been tilted against him and his control is in jeopardy at any rate for a time. The wounded soldier has just visualised danger in a new and very personal way”. A number of the case files of the Irish soldiers make mention of previous illness and wounds, but these are not investigated further by the court, nor are they taken into consideration before reaching a conclusion and declaring a sentence.

50. Throughout the duration of the war, the British Under-Secretary for War repeated in parliament the assurance that “the suspicion of shellshock at a courts-martial results in every possible medical advice being sought”[11]. As evidenced in the summary of the case files of the twenty five Irish soldiers, this was most definitely not the case. There are clear examples in which mental instability, and other injuries, were recognised by a soldier’s commanding officer, but were ignored by the court and the confirmation process. An example of some of the comments that clearly illustrated concerns regarding the mental health of some of the twenty six executed men is provided below.

“He was of an insubordinate and morose disposition and I question whether he is entirely responsible for what he does – he was without a sense of discipline and would not in my opinion be capable of considering the consequences of his actions – I do not think he was at all the kind of man to consider his own safety at that time or any others”.

“I lose my head in the trenches at times, and I do not know what I am doing at all. My family is afflicted the same way. My father committed suicide over it. My brother’s death in the Phoenix Park 5 years ago on 17 March 1916 was due to the same thing”.

51. In addition to medical conditions being considered risibly, the courts-martial procedure ignored clear extenuating circumstances in which the actions of the accused were directly contributable to a particular private or family circumstance which caused significant emotional stress.

52. There are four cases regarding Irish soldiers where extenuating circumstances, such as the death of family members or concern with regard to an illness at home, is not considered as a contributory factor in the crimes supposedly committed by those facing courts-martial. In one case, a soldier was shot despite pleading that he had been upset at hearing that his three brothers had been killed in the war. In another, a soldier twice deserted three months after hearing that his child was very ill and no further news was forthcoming. The lack of understanding on behalf of the military authorities toward the impossible situation faced by some of these men is very clear from the transcripts of the courts-martial files.

Exemplary Justice and the Confirmation Process

53. The very nature of military discipline at the time of the Great War was determined by social thought and ideas about punishments, as much as it was by perceived military requirements. The principle of deterrent was a major feature of English criminal law and Britain remained relatively untouched by the abolition movement that had made inroads into the law in most western countries.

54. Unlike other major European armies the British army was recruited on a voluntary basis. Paradoxically, this was a major factor in the comparative harshness of punishments. Volunteers for the army were regarded by many to have a lowly rather than an elevated status. Army commanders were often doubtful about the loyalty of working-class recruits: colliers who had joined the Territorial Force were not issued with rifles or ammunition when so deployed. These doubts persisted well into the First World War, but so too did the unerring faith in the value of the death penalty as an effective weapon against indiscipline.

55. In many ways military punishments reflected attitudes already present in the British criminal code. Capital punishment was less frequent than flogging, branding, or discharging soldiers in the military, but it was still inflicted with surprising regularity. The army executed thirty-seven men between 1865 and 1898 - a period punctuated by frequent colonial wars - and another four during the Boer War (1898 - 1902).

56. All this points to a system of military discipline firmly rooted in the principle of deterrence not unlike the continued reliance on the death penalty in the criminal code was thought to act as a deterrent to murder. The steady increase in the number of soldiers condemned to death during the war (85 in 1914; 591 in 1915; 856 in 1916 and 904 in 1917) highlights the increasing reliance on capital punishments by the British army in the absence of viable alternatives. In 1918 the number of condemnations fell to 515, the result of conscripts (who by this time represented the bulk of the army) being handled with greater caution, in addition to long overdue changes within the army as it modernised.

57. In the majority of the twenty five Irish courts-martial files there is evidence that the confirmation procedure of the courts-martial sentence was followed extensively, with a number of hand-written comments mainly on the fighting character of the accused and the state of discipline in his battalion, although other relevant notes such as medical forms are at times also included. There is no evidence to suggest that information has been lost and it appears that the confirmation of the sentences was based on the information currently contained in the files.

58. It is clear that the military hierarchy were interested mainly in two things when deciding on the fate of the accused; the state of discipline in the battalion to which the accused belonged, and the fighting character of the accused when in battle. There are eleven clear cases where, during the confirmation process, an example was thought to be necessary because of the bad discipline in the battalion of the accused man. This meant that some men were effectively executed simply to deter their colleagues from contemplating a similar crime, and not because they deserved their fate. The quotes below from the case files give an indication of the severity of some of these comments, and the influence they must have had on those in a position to quash or confirm the extreme penalty.

“There have been far too many cases already of desertion in this Battalion. An example is needed as there are many men in the Battalion who never wished to be soldiers”.

“I consider that, in the interests of discipline, the sentence as awarded should be carried out”.

“(I recommend) the extreme example be carried out as a deterrent to other men committing a similar offence”.

“the state of discipline of the unit as a whole is good, but there are individuals (such as the accused) in the unit who take advantage of leniency and for whom an example is needed”.

“under ordinary circumstances I would have hesitated to recommend the capital sentence awarded be put into effect as a plea of guilty has been erroneously accepted by the court, but the condition of discipline in the Battalion is such as to render an exemplary punishment highly desirable and I therefore hope that the Commander in Chief will see fit to approve the sentence of death in this instance”.

59. As referred to by numerous military historians since the release of the case files in the 1990’s, the preponderance of cases in which soldiers were shot for the sake of example undermines the very fabric of the military law to which these men were expected to adhere so rigidly. How can a system of law justify the execution of one soldier and not another, simply on the basis of the behaviour of soldiers other than the accused?

60. In addition, comments appended during the confirmation process on a man’s fighting ability could sometimes effectively condemn the man to be shot – describing a man’s ability as a soldier as ‘useless’ was in some instances the clear determining consideration in deciding his fate. Again, the quotes below give an indication of the injustice of some of these comments.

“I consider him (to be) an insubordinate man of low class”

“(The accused) is a determined shirker during a time of war and unworthy of being a soldier or Englishman”.

“this man’s value as a fighting soldier is NIL”

61. Furthermore, it is clear from the twenty five case files that these two factors had much less of a positive influence in the confirmation process, if any, when the discipline in the battalion was good and the man was thought to be a good soldier. In some instances the confirmation process up the ranks even reveals divergent opinions by commanding officers on whether to confirm the death sentence, which did not affect the outcome.

62. There are other compelling factors that must also be considered when reviewing the files. In two cases there are clear references to discrimination against the lower ranks, and in another there is evidence of the court mistakenly accepting a guilty plea, thereby permitting the accused to effectively sign his own death warrant in ignorance of the consequences. As in the latter case, there are a number of cases where it is evident that those presiding at courts-martial did not fully understand the process, or even bother to apply a sense of notional justice.

The Pardons for Soldiers of the Great War Act 2000

63. The New Zealand Pardon for Soldiers of the Great War Act 2000 had its genesis in a Private Members Bill presented to Parliament in 1998 by the NZ Labour MP for Invercargill, Mark Peck. Peck had worked closely for a number of years with the families of two of the executed soldiers, Private Victor Spencer and Private Jack Braithwaite. Initially the Returned Services Association (RSA) was supportive of the campaign. However when Peck’s bill was published the RSA withdrew support because it applied to a limited number of soldiers. 

64. When the Bill was introduced in 1998, Peck was in opposition. The conservative National Party Government decided to set up an independent inquiry under the retired High Court judge Sir Edward Somers. Somers examined all extant documentation including the personal files and court martial records and concluded that shell-shock or other stress-related disorders were a likely cause of the men’s actions.  Despite this finding, Somers was unable to conclude that there was sufficient evidence of a miscarriage of justice.

65. The National Party Government accepted Somers’ findings and there the matter seemed set to rest. However in late 1999 the NZ Labour Party was elected to office under the leadership of Helen Clark. Her Government reviewed the matter and she announced in April 2000 that “…our conscience wouldn’t rest if we didn’t do something to retrospectively pardon those soldiers…..It’s just so pitiful that men who were sick, drunk, epileptic, shell-shocked ended up being executed”. The Peck Bill then proceeded through Parliament and into law. 

66. The purpose of the Pardons for Soldiers of the Great War Act 2000 was to pardon the five New Zealanders executed during WWI to remove, so far as practicable, the dishonour that the executions brought to the soldiers and their families. The NZ Government stated in Section 5 of their preamble that “their execution was not a fate that they deserved, but was one that resulted from the harsh discipline that was believed at the time to be required; the application of the death penalty for military offences being seen at that time as an essential part of military discipline”.

67. The approach adopted by the New Zealand Government was cognisant to the fact that the history of those shot at dawn cannot be rewritten. Granting a pardon would not, unless specifically stated to the contrary, vacate the original verdict of courts-martial. The Act judiciously identified each soldier by name, rank and number, restated the charge, verdict and sentence and then concluded by granting each ind